SECRETARY FOR JUSTICE v. CAI KANG GANG AND ANOTHER

SECRETARY FOR JUSTICE v. CAI KANG GANG AND ANOTHER

The court held that the Restraint Order was validly made and, on the evidence, including patterns of transactions and the scale of receipts through R2, there remained a real risk that the funds were proceeds of crime; delay alone did not justify varying the Order to enable satisfaction of the Intervener’s judgment and the discretionary relief sought was refused (the Restraint Order was maintained).

Citation
[2021] HKCFI 2159
Parties
Intervener: Intervener; Respondent (company): R2; Respondent (individual Alleged Controller of R2): R1; Bank (account Holder): Bank of China; Claimed Transferor/witness: Daughter
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 September 2021
Case Number
HCMP1271/2014
Procedural Posture
Restraint Order Under Organized and Serious Crimes Ordinance (osco) / Miscellaneous Proceedings / Application to Vary/seek Release of Restrained Funds (intervener Application)
Outcome
Application to vary the Restraint Order refused; Restraint Order maintained
Legal Topics
Restraint Order, Confiscation Order, Mistaken Payment, Default Judgment Enforcement, Delay and Procedural Fairness
Source Language
EN
Criminal Law Asset Forfeiture Money Laundering Civil Enforcement Company Law Restraint Order Confiscation Order Mistaken Payment +2 more

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Parties

Intervener

Intervener

R2

Respondent (company)

R1

Respondent (individual Alleged Controller of R2)

Bank of China

Bank (account Holder)

Daughter

Claimed Transferor/witness

Procedural Posture

Restraint Order Under Organized and Serious Crimes Ordinance (osco) / Miscellaneous Proceedings / Application to Vary/seek Release of Restrained Funds (intervener Application)

Legal Issues

  1. 1 Whether the Restraint Order should be varied to permit satisfaction of a civil judgment obtained by the Intervener against R2
  2. 2 Whether the sums in the restrained accounts are proceeds of crime or were mistakenly transferred (misapplied repayment)
  3. 3 Whether delay in criminal investigation/prosecution justifies varying or discharging the Restraint Order

Ratio Decidendi

The court held that the Restraint Order was validly made and, on the evidence, including patterns of transactions and the scale of receipts through R2, there remained a real risk that the funds were proceeds of crime; delay alone did not justify varying the Order to enable satisfaction of the Intervener’s judgment and the discretionary relief sought was refused (the Restraint Order was maintained).

Court Disposition

Application to vary the Restraint Order refused; Restraint Order maintained

Orders

  • Restraint Order continued/maintained in respect of the two Bank of China accounts held in R2's name
  • Application by the Intervener to vary or discharge the Restraint Order dismissed (no variation to permit satisfaction of the Intervener's judgment)